14th April – Editorials/Opinions Analyses

Contents

1. Sacking by Subterfuge: Removal of A.P.’s top election official
2. Reimagining our economic choices
3. Accessing justice online
4. Ambedkar and the Poona Pact
5. Explained: How a dollar swap line with US Fed can help
6. Explained: A look at WTO’s rules

SACKING BY SUBTERFUGE: REMOVAL OF A.P.’S TOP ELECTION OFFICIAL

Focus: GS-II Governance

Why in news?

The legality of the removal of the Andhra Pradesh State Election Commissioner (SEC) is seriously in doubt. That it was the culmination of an open conflict between the Election Commissioner, and Chief Minister makes it a glaring instance of misuse of power.

Background

• The State government got the Governor to issue an ordinance to cut the SEC’s tenure from five to three years, and amend the criterion for holding that office from being an officer of the rank of Principal Secretary and above to one who had served as a High Court judge.
• This automatically rendered SEC’s continuance invalid.
• Last month, just days before the local body polls were to be held, the SEC postponed the elections, citing the COVID-19 outbreak.
• The State government approached the Supreme Court, but the court declined to interfere.
• Having exhausted its legal remedy, the government should have waited for the ongoing fight against the disease to be over.
• The State government seems to have gone by legal opinion that cited Aparmita Prasad Singh vs. State of U.P. (2007) in which the Allahabad High Court ruled that cessation of tenure does not amount to removal, and upheld the State Election Commissioner’s term being cut short.

Significance of the issue

• The Chief Minister has no legal right to terminate the SEC’s tenure, as the Constitution makes the holder of that post removable only in the same manner as a High Court judge.
• If courts uphold this means of dislodging the head of an independent election body, it would mark the end of free and fair elections.

Constitution on such an issue

•  The Supreme Court, while dismissing an appeal against the order, kept open the legal questions arising from the case.
• The judgment seems erroneous, as it gives a carte blanche to the State government to remove an inconvenient election authority by merely changing the tenure or retirement age.
• This was surely not what was envisioned by Parliament, which wrote into the Constitution provisions to safeguard the independence of the State Election Commission.
• It is a well-settled principle in law that what cannot be done directly cannot be done indirectly.
• Therefore, the removal of an incumbent SEC through the subterfuge of changing the eligibility norms for appointment may not survive judicial scrutiny.
• Further, the Constitution, under Article 243K, prohibits the variation of any condition of service to the detriment of any incumbent.
• Even if the State government argues that a change of tenure does not amount to varying the conditions of service, the new norm can only apply to the successor SEC, and not the one holding the office now.

Article 243K : Elections to the Panchayats

(1) The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Panchayats shall be vested in a State Election Commission consisting of a State Election Commissioner to be appointed by the Governor

(2) Subject to the provisions of any law made by the Legislature of a State the conditions of service and tenure of office of the State Election Commissioner shall be such as the Governor may by rule determine: Provided that the State Election Commissioner shall not be removed from his office except in like manner and on the like ground as a Judge of a High Court and the conditions of service of the State Election Commissioner shall not be varied to his disadvantage after his appointment

(3) The Governor of a State shall, when so requested by the State Election Commission, make available to the State Election Commission such staff as may be necessary for the discharge of the functions conferred on the State Election Commission by clause ( 1 )

(4) Subject to the provisions of this Constitution, the Legislature of a State may, by law, make provision with respect to all matters relating to, or in connection with, elections to the Panchayats

REIMAGINING OUR ECONOMIC CHOICES

Focus: GS-III Economic Development

Introduction to our choices

• The COVID-19 pandemic will reshape all our economic choices. Nations have made a crucial choice in recent weeks, choosing human life over economic growth.
• Governments including ours have mandated lockdowns to slow the pandemic, relieve the pressure on their hospitals and save lives.
• Economics is about choices, a study of ‘human behaviour as a relationship between ends and scarce means’. Trade-offs are central to these choices.
• On the one hand, there will be massive economic costs.
• On the other hand, updates land in our phones on a minute-by-minute basis, invoking both our empathy and our fear.
• Our choice is obvious — human life over economic growth.

Do we really always choose to save lives?

• For decades, we have chosen profits and growth over human lives.
• The World Health Organization (WHO) estimates that 4.2 million lives are lost annually due to air pollution.
• These deaths occur in dispersed locations, through varying illnesses and outside our frenzied social media feeds. Therefore, the choice is not as clear to us.
• It is a choice between 4.2 million lives and the marginal returns from industries choosing polluting vs. non-polluting technologies.
• This is not a Luddite call to replace our cars with carriages. Cleaner technologies are available, for instance, through our IFAD programs, low-cost technologies are being developed even for smallholder farmers.

Saving lives is not something that is easily being done now

• Social Distancing is hardly viable for the 2% of the global population who are homeless or the 20% who lack adequate housing.
• Social distancing will also take a disproportionate economic toll on the informal sector, employing up to 60% of the working population globally and 90% in India.
• The cure could trigger deep poverty and a food security crisis, actually endangering more lives.
• According to UNICEF, even prior to COVID-19, diseases directly linked to lack of safe water killed 1,400 children under five every day, globally over half a million a year.

ACCESSING JUSTICE ONLINE

Focus: GS-III International Relations

Why in news?

• With Indian courts too under a lockdown for three weeks (and probably more), citizens have severely restricted access to justice for this period.
• However, the deeper malaise is the complete inability of the conventional court system to deliver timely justice.
• This shakes the very foundation of the polity on which we rest our constitutional promises.
• Technology, however, now provides us an opportunity to meet the challenge headlong.
• The Kerala High Court did exactly that on March 30, 2020 and created history by not only conducting proceedings through video conferencing but also live streaming the proceedings.

Way Forward- A blueprint for e-courts

• To achieve this, the government must establish an effective task force consisting of judges, technologists, court administrators, skill developers and system analysts to draw up a blueprint for institutionalising online access to justice.
• Such a task force must be charged with the responsibility of establishing hardware, software and IT systems for courts; examining application of artificial intelligence benefiting from the data base generated through e-courts projects; establishing appropriate e-filing systems and procedures; and creating skill training and recognition for paralegals to understand and to help advocates and others to access the system to file their cases and add to their pleadings and documents as the case moves along.
• Once the blueprint is ready, the High Courts across the country may refer the same to the Rule Committee of the High Court to frame appropriate rules to operationalise the e-court system.
• The facility must not only enable access to courts but must provide access to justice through other processes as well.

What does all this have to do with accessing justice?

• While these schemes look rosy on paper, without implementation and accountability there is no justice to the aggrieved citizens.
• It is in addressing this problem that the Legal Services Authorities Act of 1987 and the officers functioning under them all over the country can play a huge role. If there is difficulty in accessing these schemes, a system must be set in place for the applicant to lodge online complaints with the Legal Services Authorities who can then ensure accountability and effective implementation.
• The local panchayat, municipal or corporation office, or any well-intentioned NGO can assist the complainant to make these online complaints to the Legal Services Authority if the complainant is unable to do so directly.
• The officers under the Legal Services Authorities Act may then be authorised to hear the complaints online and to direct delivery of redress to the aggrieved complainant in accordance with the law in a time-bound manner.
• This is just one of the myriad ways in which access to justice can be enhanced exponentially while simultaneously reducing the burden on conventional courts.

AMBEDKAR AND THE POONA PACT

Focus: GS-I History, GS-II Polity

Introduction to Poona Pact

• In late September 1932, B.R. Ambedkar negotiated the Poona Pact with Mahatma Gandhi.
• The background to the Poona Pact was the Communal Award of August 1932, which, among other things, reserved 71 seats in the central legislature for the depressed classes.
• Gandhi, who was opposed to the Communal Award, saw it as a British attempt to split Hindus, and began a fast unto death to have it repealed.

Fair representation

• In a settlement negotiated with Gandhi, Ambedkar agreed for depressed class candidates to be elected by a joint electorate.
• However, on his insistence, slightly over twice as many seats (147) were reserved for the depressed classes in the legislature than what had been allotted under the Communal Award.
• In addition, the Poona Pact assured a fair representation of the depressed classes in the public services while earmarking a portion of the educational grant for their uplift.
• The Poona Pact was an emphatic acceptance by upper-class Hindus that the depressed classes constituted the most discriminated sections of Hindu society.
• It was also conceded that something concrete had to be done to give them a political voice as well as a leg-up to lift them from a backwardness they could not otherwise overcome.
• The concessions agreed to in the Poona Pact were precursors to the world’s largest affirmative programme launched much later in independent India.
• A slew of measures were initiated later to uplift Scheduled Castes and Scheduled Tribes. Despite what Ambedkar had achieved for the depressed classes through the Poona Pact, there were carpers.

Positive outcomes

• The Poona Pact had several positive outcomes for Ambedkar. It emphatically sealed his leadership of the depressed classes across India.
• He made the entire country, and not just the Congress Party, morally responsible for the uplift of the depressed classes. Most of all he succeeded in making the depressed classes a formidable political force for the first time in history.
• As a practical man Ambedkar was not looking for the perfect solution. As he remarked in a 1943 address to mark the 101st birthday celebrations of Mahadev Govind Ranade, all he wanted was “a settlement of some sort”; that he was not “prepared to wait for an ideal settlement”.
• It is very much in this spirit that he affixed his signature to the Poona Pact saving Gandhi’s life as well as that of the Congress Party’s while giving a big voice to the depressed classes.
• On the 129th year of his birth on April 14 this year, we would do well to remember Ambedkar as much for the Poona Pact as we do for the Constitution he helped conjure. Without the former, the latter would never have been.

EXPLAINED: HOW A DOLLAR SWAP LINE WITH US FED CAN HELP

Focus: GS-III Indian Economy

Why in news?

• India is working with the United States to secure a dollar swap line that would help in better management of its external account and provide extra cushion in the event of an abrupt outflow of funds, according to banking industry and government sources.
• India already has a $75 billion bilateral currency swap line with Japan, which has the second highest dollar reserves after China.
• The Reserve Bank of India also offers similar swap lines to central banks in the SAARC region within a total corpus of $2 billion.

What are the benefits of a swap line?

• While India is largely expected to tide over any challenge posed by continued outflows of funds from the markets, a swap line with the US Federal Reserve provides additional comfort to the forex markets.
• Foreign institutional investors (FIIs) have been large sellers in the Indian equity and debt markets in March and April so far, as concerns over the economic effects of the COVID-19 pandemic has hit investor sentiment.

Are India’s foreign exchange reserves enough?

• In roughly a month, India’s foreign exchange reserves have fallen by nearly $13 billion — from an all-time high of $487.23 billion on March 6 to $474.66 billion as on April 3, as per the latest data reported by the RBI.
• Despite the slump in global crude oil prices and reduction in imports due to the pandemic outbreak, a sharp outflow of funds resulting from foreign portfolio investors (FPIs) looking for safer havens amidst the current global uncertainty, has pulled down India’s foreign exchange reserves.
• After a smooth run during which India’s foreign exchange reserves rose week-on-week for nearly six months, they started to decline in March. FPIs invested a net of Rs 58,337 crore, or nearly $8 billion, between September 2019 and February 2020.

How does a swap facility work?

• In a swap arrangement, the US Fed provides dollars to a foreign central bank, which, at the same time, provides the equivalent funds in its currency to the Fed, based on the market exchange rate at the time of the transaction.
• The parties agree to swap back these quantities of their two currencies at a specified date in the future, which could be the next day or even three months later, using the same exchange rate as in the first transaction.
• These swap operations carry no exchange rate or other market risks, as transaction terms are set in advance.
• The absence of an exchange rate risk is the major benefit of such a facility.

Does India have a swap line with any other country?

• In 2019, India signed a $75 billion bilateral currency swap line agreement with Japan, which has the second largest dollar reserves after China.
• This facility provides India with the flexibility to use these reserves at any time in order to maintain an appropriate level of balance of payments or short-term liquidity.
• Last November, to further financial stability and economic cooperation within the SAARC region, the RBI put in place a revised framework on currency swap arrangement for SAARC countries for 2019-22.

EXPLAINED: A LOOK AT WTO’S RULES

Focus: GS-III International Relations, Economic Development

How does WTO classify developed and developing countries?

• The WTO doesn’t define countries as ‘developing’ or ‘developed’.
• Member nations themselves are required to declare which category they fall under.
• However, these declarations can be challenged by other member nations.
• Over two-thirds of WTO’s 164 member countries are developing countries.

Advantages of a ‘developing country’ status

• Some WTO agreements give developing countries special benefits and rights, which are referred to as “special and differential treatment provisions”.
• These provisions include a longer time period for implementing agreements and commitments or measures to increase trading opportunities for developing countries.
• Essentially, under these agreements, developed countries may treat developing countries more favourably than other WTO members.
• However, a country that announces itself as ‘developing’ does not automatically benefit from unilateral preference schemes.

Should China still be classified as a developing nation?

• China became a WTO member in 2001, the organisation’s 143rd. As per a WTO document noting its performance from the time of accession to the organisation till 2011, China became the second-largest economy in GDP terms, the first largest merchandise exporter, the fourth largest commercial services exporter and the first destination for inward FDI among developing countries.
• WTO answers the question of whether China should be classified as developing, by quoting “So if China is forced to take on the duties of a developed country and forego the benefits of a developing country, the West could soon ask other developing countries that are ahead of China (at least in per capita terms) to do the same. China’s fight to retain its developing country status is of interest not only to the Chinese people, but also to their counterparts in other developing countries.”